CR No. 1369 of 2010; The State v Anton Vele Aga (No.2) (2013) N5381

• Jurisdiction: Papua New Guinea
• Judge: Geita AJ
• Judgment Date: 15 August 2013
• Citation: (2013) N5381
• Court: National Court
• Year: 2013
• Judgement Number: N5381

Full Title: CR No. 1369 of 2010; The State v Anton Vele Aga (No.2) (2013) N5381

National Court: Geita AJ

Judgment Delivered: 15 August 2013

N5381

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1369 of 2010

THE STATE

-v-

ANTON VELE AGA (No.2)

Wewak: Geita AJ

2013: 17, 24, April

15 August

CRIMINAL LAW – Sentence – Manslaughter - Dangerous weapon used – First time offender - A police SLR Assault rifle used - cause of death accidental – Genuine remorse shown – Willingness to pay some form of compensation – Aggravating, extenuating and Mitigating factors considered – Sentence of 7 years wholly suspended with conditions..

Cases Cited

Rex Lialu v The State [1988] PNGLR 487

Steven Loke Ume, Charles Patrick Koana & Greg Wawa Kavoa v The State (2006) SC 836

Thress Kumbamong v The State (2008) SC 1017,

The State v Jacklyn John Tuanis; (unreported 15 March 2013) CR No, 365 of 2010,

John Wanamba v The State (1998) SC 551

Manu Koivi v The State (2005) SC 789

Counsel

Ms. Nancy Lipai & Timothy Ai, for the State

Mr. Johnson Malambaul, for the Accused

15 August 2013

DECISION ON SENTENCE

1. GEITA AJ: On 25 March 2012 the State presented an indictment against you for wilful murder under section 299 of the Criminal Code Ch. No. 262. You pleaded not guilty and a trial ensued. At the end of your trial the court returned a verdict of guilty for manslaughter under section 302 of the Criminal Code Act. Due to circuit schedules that year coupled with the lawyer’s inability to make submissions on time including the need for a Pre sentence Report on your behalf this matter could not be finalised any earlier as I would have liked. Nonetheless we have eventually reached that point this year in this circuit hence your decision on sentence.

2. The offence comes under Section 302 of the Criminal Code and attracts a life term imprisonment. However subject to Section 19 of the Criminal Code a lesser sentence may be imposed by the Court:

“S. 302 Manslaughter

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

Brief Facts

3. The facts as found by me on the conviction following trial are these: On Saturday 14th August 2010 between 7.00 pm and Sunday next day 3.00 am you and other auxiliary policemen were on duty, providing security at the Wewak Yacht Club dance. Around 3 am the dance was stopped due to unruly behaviour by drunks and patrons told to leave the premises. A patron Steward Kapak approached you and demanded the return of his bayonet which was earlier removed from him before he entered the dance area but was told to collect it from the Police Station the next day and so he moved on. He was soon followed by the deceased Christopher Kawi who came up to you and argued with you over a previous police matter resulting in his friend been arrested for possessing marijuana. The argument erupted into a struggle and became life threatening forcing you to retreat to your parked police vehicle to get the weapon in order to ward off the deceased’s approach. However the deceased followed closely by and a scuffle ensued resulting in the rifle going off, wounding the deceased through the left ribs. He was then rushed to the hospital by you in the police vehicle but pronounced dead on arrival.

Allocutus

4. In your allocatus you told court that you were sorry for what had happened and apologised to the family of the deceased and his relatives. You said you did not mean to harm the deceased that night and expressed shock when wounded. You asked for leniency from this court saying that the incident arose during the course of duty as a policemen carrying out state duties. Furthermore you are an asthmatic patient on regular monthly medication and any orders for incarceration would cause your health condition to deteriorate rapidly. Your stated the following, “I have co-operated with Police all these years waiting for my case to be determined and my family subjected to constant threats and harassment over the years. I am 55 years and have served the Police Force for more than 30 years up to the time of incident. I also want to thank the court for finally determining my case as I have waited for more than three (3) years”.

Antecedents

5. The prisoner is aged 57 and comes from Gava village, Rigo in the Central Province. He is married to his wife Agatha and have grown up children, all married with their own families.He is a member of the Roman Catholic faith and at the time of the incident was a policemen and resident with his family at Perigo Police Barracks in Wewak. He was educated up to primary school education and has no prior convictions.

Extenuating circumstances

· Arrest of the deceased brother/accomplice by the prisoner in an earlier incident

· Deceased was heavily intoxicated at time of incident and caused much nuisance.

· Deceased accosted the prisoner

· The deceased and the prisoner struggling for the gun (rifle) resulting in a shot being accidently fired from the rifle

Aggravating factors.

· A dangerous weapon was used ( a rifle)

· One shot was fired

Mitigation factors.

· No prior conviction, good citizen with unblemished record

· Was on duty at the time serving the State and Police Department as a police officer

· Is a Christian

· First time offender

· Cooperated with police

· Expressed genuine remorse,

· Deteriorating health, old age as a result of his

· Asthmatic condition

Defence Submissions.

6. Although Defence Counsel Mr. Malambaul conceded that his client’s case was one which could easily fall within a prison term of between 20 – 30 years, category 2 of the schedule of tariffs decided in the Supreme Court case of Manu Kovi v The State (2005) SC 789, the uniqueness of his clients case distinguishes it from Manu Kovi. He submitted that in light of overwhelming mitigating and extenuating circumstances in favour of his client, a reduction in the seriousness of this crime is warranted. All relevant aggravating circumstances also considered. The need for balance of all relevant factors under the circumstances and final determination of a suitable punishment befitting the crime be observed: (Steven Loke Ume, Charles Patrick Koana & Greg Wawa Kavoa v The State (2006) SC 836.)

7. Mr Malambaul submitted that the court depart from Manu Kovi case in light of another Supreme Court case of Thress Kumbamong v The State (2008) SC 1017 and exercise its discretionary powers befitting the present case. The Supreme Court bench comprising Salika, Kandakasi and Yagi JJ expressed reservations about the curtailing of courts discretionary powers in Manu Kovi.

8. The court was referred to two other cases: The State v Jacklyn John Tuanis; (unreported 15 March 2013) CR No,365 of 2010, a guilty plea for murder within a domestic setting, reduced to manslaughter upon findings that the circumstances were quite peculiar. In that case I ordered a prison term of 10 years, deducted 3 years with the balance wholly suspended. The second case involved a rifle-incident killing by a police officer. In his attempts to disperse a rowdy crowd by firing his rifle into the air he accidently touched the trigger, setting the rifle off into the oncoming crowd killing one of them. The Supreme Court having found the appellant guilty of manslaughter after trial imposed a 4 years prison term. (John Wanamba v The State (unreported 29/04/1998 SC 551 in Wewak.

9. Mr Malambaul submitted that the above case be distinguished from his client’s case in that here both the prisoner and the deceased were involved in a struggle over the gun which accidently went off causing his death. Defence Counsel submitted that a prison term of 5 years be considered with conditions involving the making of reasonable compensation to the victim’s wife and children. A wholly suspended sentence was also called for on behalf of his client.

State Submissions

10. Mr Kupmain conceded that the prisoner was a long serving police officer with over 40 years impeccable record however the crime has caused the loss of a life and he must be made accountable for his wrongs. The seriousness of the crime warrants a maximum life imprisonment however Parliament in its wisdom has also put in place alternative punishments provided under s.19 Criminal Code Act. He submitted that the court consider a deterrence sentence in view of the prisoners...